Don
Rowat is Professor Emeritus of Political Science at Carleton University,
Ottawa. He is former president of the Canadian Study of Parliament Group. This
is a revised version of his remarks at the 1998 CSPG Spring Conference.

Though
the referendum as used in Canada is often said to be a device of direct
democracy, this is not true, because of our confused use of the word referendum.
As used in the United States, the word means the reference of a legislative
proposition, initiated by the citizens, to a popular vote, the result of which
is binding. In other words, the voters pass laws directly, without reference to
the legislature, and this is why it is called direct democracy.

Referendums were an extension
for large populations of the practice of direct democracy in the Swiss canton
meeting or the New England town meeting of voters, where legislation is still
passed, and taxes are levied, directly by the voters. This type of referendum
is direct democracy in the sense that the voters are actually passing
legislation if they approve the proposition presented to them.

The other meaning of the word,
and the one now meant in Canada, is the reference of a question to a popular
vote, which is not binding on the government or legislature that referred it. A
government or legislature may ignore the result and they have often done so.
Thus the non-binding referendum is merely a kind of expensive public opinion
poll. One can argue that polls are better because they are a scientific sample
of the whole adult population, while in a Canadian referendum few may vote, so
it can easily happen that a majority vote is not the majority view of the whole
electorate. This type of referendum is more properly called a plebiscite. But
often these terms are used interchangeably in Canada. For instance, Patrick
Boyer entitled his book of 1992, “Direct Democracy in Canada: The History and
Future of Referendums,” yet was mainly concerned with this type of referendum.
I would argue that his title is misleading because most of the direct votes in
Canada have been of the non-binding type, whether called referendums or
plebiscites, and so are not really a form of direct democracy.

Unfortunately, it really muddies
the water to use the same term for binding and non-binding referendums, and to
call both “direct democracy,” because they are basically so different. In
discussions we should be careful to specify which one we are talking about, by
using a qualifying word such as “non-binding”, or calling it a plebiscite or a
consultative referendum because the voters are merely being consulted.

We need to remember that a
plebescite or consultative referendum is not direct democracy because the
legislature makes the ultimate decision.

The type of referendum in the
bill recently proposed by Ontario’s Harris Government cannot properly be
considered a device of direct democracy. Though it will require the government
to hold referendums on constitutional changes or tax increases, and provides
for a voter initiative on other matters, the result is not binding on the
government or legislature. Recall that Metro Toronto held a consultative
referendum and voted against amalgamation by a large majority, but the Harris
Government ignored the vote and went ahead with amalgamation anyway. The voter
initiative will require a petition for a referendum to be signed by 700,000
voters representing 10 per cent of the voters in each of Ontario’s nine
judicial districts. Critics argue that this is far too limiting for an
initiated referendum to be used much, if at all. For instance, a petition to
hold a referendum on the government of Toronto would require support from the
whole province, including 10 per cent of the voters in a district in Northern
Ontario. And in the referendum itself at least 50 per cent of the voters must
vote. Thus a referendum could pass with a majority of only 25 per cent, plus
one, of Ontario’s voters.

The reason we in Canada nowadays
use the term referendum to mean mainly the non-binding type is because at
the beginning of the century the western provinces experimented with the
binding referendum. But it was abandoned because the Manitoba law on the
subject was declared unconstitutional in 1919, mainly on the ground that it
usurped the power of the lieutenant-governor, as a representative of the crown,
to veto legislation. It also interfered with the powers of the federal
government, which appoints the lieutenant-governors and has the power to
instruct them.

The western provinces had been
influenced by the development of direct democracy in the western states of the
United States, where it usually involved the initiative, the referendum and the
recall. In about a quarter of the states, voter initiative could formulate a
proposition and take it directly to the voters, thus completely by-passing the
legislatures, many of which were in bad repute. As we can see, the initiative
was closely linked to the binding referendum and the recall. It allowed a small
percentage of the voters to: 1) initiate action by the legislature on a
proposal, 2) initiate a referendum on a voter-proposed law, or 3) initiate a
vote on the recall of a legislative member. For instance, the Saskatchewan bill
of 1913 required for an initiative leading to a referendum a petition of 5 per
cent of the voters. But the Saskatchewan bill failed to get the required 30 per
cent approval by all voters. One could say it was defeated by its own
principle: direct democracy. A similar bill in British Columbia was passed in
1919 but never proclaimed, probably due to the court decision on the Manitoba
law in 1919. Alberta’s law of 1913 got around the constitutional problem by not
requiring its referendum to be binding. So the upshot is that the 1919
constitutional barrier to direct democracy still stands, with little hope of a
constitutional amendment.

As a result, the federal
government and the provinces have passed laws providing for what are basically
plebiscites, but in most cases they have still used the term referendums. All
provinces except Nova Scotia and Ontario now have such a law, and this type of
referendum has been used frequently in Canada since Confederation. In his book
Mr. Boyer lists 60 federal or provincial referendums held before 1992, British
Columbia leading the list with eleven. The provinces also have laws providing
for municipal referendums, and there have been many more at the municipal
level.

Provision for the recall of
legislative members has not been as popular in Canada as it has in the U.S.,
perhaps because in Canada the binding referendum was thought to be a sufficient
control of the legislature. Alberta was the only province to provide for the
recall, and there not until 1936. But it ended in embarrassment for Premier
Aberhart and his government. The only attempted recall was of the premier
himself, in his own riding. So his government quickly had the recall law
repealed, in October 1937.

The consultative
referendum has often been used by authoritarian regimes to get a show of public
approval for an arbitrary action. These regimes rig the vote to make sure they
get a massive favourable majority.

Interest in the recall has been revived
recently, however, especially by the Reform party. British Columbia is the
outstanding recent example. In a consultative referendum held in 1991, 74 per
cent of the voters supported recall legislation. Then a Recall and
Initiative Act was passed in 1995. It allows a binding recall vote after
eighteen months if 40 per cent of the voters in a riding sign a petition
requesting it. The scheme was soon tested in October 1997 against two MLAs, one
of them a minister in Premier Clark’s Government. But the attempt failed to get
the necessary 40 per cent. The next attempt to use it was a petition to recall
MLA Paul Reitsma, initiated in April 1993, after it was revealed that he had
written letters to the press praising himself but signed with a false name. Mr.
Reitma subsequently resigned. Meanwhile, the B.C. Civil Liberties Association
has challenged the law in court as unconstitutional for much the same reasons
as in the 1919 decision on the binding referendum.

Although the consultative
referendum cannot be classed as direct democracy, it has been used frequently
in both democratic and non-democratic countries in this century, and its
popularity has increased. An excellent survey is in a book edited by David
Butler and Austin Ranney, Referendums Around the World, published in
1994. They collected information on about 550 important referendums, not
counting those in Switzerland and the United States, the homes of direct
democracy, which have had as many referendums as all the rest put together.
They divided these important cases into two tables, one for nation-wide
referendums, and the other for about 140 subordinate territories, including
ones on independence and separation, such as those in Quebec. Hence readers
interested in Quebec’s “neverendum referendum” can easily study these in
particular. In each case the listings show the country, year, purpose and –very
useful– the result of the vote and the voter turnout, especially since voter
turnout is so crucial to getting a majority vote of the whole electorate.

The Butler-Ranney survey reveals
that the consultative referendum is not necessarily a democratic device. One
problem, as mentioned, is that a majority in a referendum may be far from a
majority of the electorate. But a more serious one is that democracy means not
only majority rule but compromise and the protection of minority rights. So a
majority vote may override these rights, and is often referred to as “the
tyranny of the majority.”